Supreme Court Advocates-on-Record Association ACCESS TO JUSTICE FOR CHILDREN HON'BLE MRS.

JUSTICE RUMA PAL Judge, Supreme Court of India The word justice means fairness - and yet the phrase access to justice is normally understood in the limited sense of a right to litigate. Litigation assumes an existing right. No access to justice is possible without this key element. Therefore when one talks of access to justice, one has to consider what these rights are and how they are to be vindicated. I do not intend to cover the entire gamut of rights which a child in India is entitled to, but will highlight only some, where focus is necessary viz. the right of destitute children in the field of employment and crime for whom the question of access to justice often becomes a question of their survival. The right of destitute children in both these areas is recognized internationally. The Universal Declaration of Human Rights, recognizes that Children are entitled to special care and assistance.1 The International Covenant on Civil and Political Rights (ICCPR) also guarantees to every child, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.2 These principles are further reiterated by the International Covenant on Economic, Social and Cultural Rights which recognizes that Special measures of Protection and assistance should be taken on behalf of all children and young persons Without any discrimination for reasons of parentage or other conditions.3 The International Covenant on Economic, Social and Cultural Rights4 mandates that Children and young persons should be protected from economic and social Exploitation. Their employment in work harmful to their morals or health or dangerous

to life or likely to hamper their normal development should be punishable by law.5 The United Nations Convention on the Rights of the Child, 1989 reiterates this right to freedom from exploitation6 while emphasizing that the child needs special 1 The Universal Declaration of Human Rights, Article 25 (2). 2 The International Covenant on Civil and Political Rights, Article 24 (1) 3 International Covenant on Economic, Social and Cultural Rights Article 10 (3) 4 Article 10 (3), The International Covenant on Economic, Social and Cultural Rights. 5 It requires that states should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. 6 United Nations Conventions on the Rights of the Child, 1989 Article 32 (1) States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the childs education, or to be harmful to the childs health or physical, mental, spiritual, and moral or social development. (2) States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present Article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: a) Provide for a minimum age or minimum ages for admission to employment; b) Provide for appropriate regulation of the hours and conditions of employment; c) Provide of appropriate penalties or other sanctions to ensure effective enforcement of the present Article. 2 Supreme Court Advocates-on-Record Association Souvenir All India Seminar on "Access to Justice" safeguards and care.7 The Constitution of India also seeks to protect the child against various forms of exploitation. It mandates that No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.8 It prohibits traffic in human beings and forced labour9 and prescribes that any contravention of this shall be an offence punishable in accordance with law.10 Article 39 stipulates that the State shall, in particular, direct its policies

towards securing the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength and that children are given opportunities and facilities to develop in a healthy manner in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Parliament enacted the Child Labour (Prohibition and Regulation) Act 1986, providing for a uniform definition of child as a person who has not completed 14 years of age. The statute classifies occupations into hazardous and non-hazardous. While employment of children in hazardous occupations is banned, employment in non-hazardous occupations is sought to be regulated.11 This is probably because the problem of child labour is the outcome of poverty and illiteracy and unless these causes are eradicated, it would be unrealistic to forbid child labour altogether. Despite these Constitutional and statutory safeguards, Child Labour in hazardous industries is still prevalent in all parts of our country.12 According to some surveys conducted, India has about 55 million child workers13 - while others have put the figure as high as 87 million children14 . Most of the children are employed in industries such as carpet manufacture, gemstone polishing, bidi rolling, manufacture of brass and metal articles, glass and glassware, 7 United Nations Convention on the Rights of the Child, 1989 came into existence in the background of various other Declarations, namely, the Declaration on Social and Legal Principles relating to the Protection and Welfare of children, with Special Reference to Foster Placement and Adoption, nationally and internationally, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict. The Convention was adopted by the U.N. General Assembly in 1989 and ratified by India in 1992.

8 Article 24. 9 Article 23. 10 The law laid down in this regard is Section 374 Indian Penal Code. 11 Under the proviso to Section 3, such regulation does not apply to any workshop where processes are carried on by the occupier with the aid of his family. This is a loophole taken advantage of by various employers to avoid giving children their due. 12 Sharma, Pawan, Child Labour: A Socio-Legal Study, 36 Journal of the Indian Law institute (1994), p. 211. 13 Mary E. Williams, Child Labour & Sweat Shops, 1999 14 E1,E1 Barometer on Human & Trade Union Rights in the Education Sectors, 1998 3 All India Seminar on "Access to Justice" Souvenir Supreme Court Advocates-on-Record Association footwear, textiles, silk and materials and fireworks. Of these a large percentage is bonded. According to the ILO 70 80% of the 8000 to 50,000 children in the glass industry in Ferozabad are bonded and 30 40% children in the match and fireworks industry are bonded.15 According to another study, of the 3,00,000 children working in the carpet industry, 2,70,000 are bonded labourers.16 Till very recently, the Supreme Courts decisions were directed to particular industries employing child labour. For example in 1990 the Supreme Court in M.C. Mehta vs. State of Tamil Nadu Nadu17 17 held that children should not be employed within the match factories directly connected with the manufacturing process up to final production of match sticks or fireworks. It held that given the economic reality which drives children to work, it would be unrealistic and impracticable to deny the employment of children altogether. So it was directed that children can be employed in the process of packing of match sticks and fireworks away from the place of manufacture. A fixed minimum wage, not less than 60% of the wages payable to adults for doing the same job, was directed to be paid. Facilities for education,

recreation and medical care were also directed to be provided. Finally the State was asked to set up a contributory welfare fund contributions to which would be made by the concerned match factories and the State. Despite these directives in 1992 an explosion took place in a factory in Sivakasi where children continued to be employed in the manufacturing process. Many children were injured and several died. The Supreme Court took suo motu cognizance of the incident and directed the State Government to pay compensation to the injured and the bereaved. A committee of lawyers was set up to visit the area and submit a report. The Report was submitted. The Supreme Court gave further directions for the implementation of the provisions of the Child Labour ( Prohibition and Regulation) Act 1986 after conducting a survey. This time the direction was given to all the State Governments. The Supreme Court said18 that Employers who violate the provisions of the Child Labour Act, 1986, must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs. 20,000; and the Inspectors, whose appointment is visualised by S.17 to secure compliance with the provisions of the Act, should do this job. The Inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the employer concerned pays Rs. 20,000 which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund. The survey of child labour throughout the country was completed in 1997. According to this survey there were 428, 305 child labourers in hazardous industries 15 ILO-IPEC, mainstreaming genders in IPEC Activities, 1999 16 VS Dept. of Labour, Street and Toil of Children: Consumer Labels and Child Labour, 1997 17 1991 (1) SCC 283 18 M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699.

Souvenir All India Seminar on "Access to Justice"alone. The figure is said to be an underestimation nevertheless it shows that the problem is continuing. The figures of children who are bonded labourers in Match and Fireworks factories in 1999 would suggest that the directions of the Supreme Court have remained unattended to. Thus even with international, constitutional, statutory and judicial recognition of a childs rights to be employed in non-hazardous work, they continue to be given work in health destroying, crippling and dangerous industries, with no effective alleviation of their lot. How then does one secure them these rights? The solution which is simple in theory but difficult in practice lies in one word and that is implementation. As I have said before that although the meting out of justice in its widest sense to children, is the responsibility of every citizen, every institution and every limb of Government, somehow the task has been left to a large extent to the judiciary. The Executive has the necessary means and infrastructure to give effect to and to bring into operation these rights and it is the primary duty of the Executive to implement the law. It is a duty which, if the past experience is anything to go by, it has singularly failed to fulfil. The other method of access is through public spirited and compassionate individuals and non-governmental organizations who have and must continue to draw the Courts attention to the plight of the destitute children through public interest litigations. Such litigations are responsible for a valuable part of the jurisprudence on Child rights, particularly child labour. However, such action must be based on adequate and unimpeachable material. The issue need not be raised in a generic fashion and perhaps for any meaningful access to justice by children the problem must be particularised and specific. However, entitlement and recognition of rights by way of pronouncements and declarations by Courts, though necessary, is only a part of the solution. Without actual implementation of these rights, the process of justice to children is incomplete and meaningless. With the concept of the Continuing Mandamus,1 the Court can and should monitor and supervise cases of child labour and exploitation till it is satisfied that
1

Vineet Narain V. Union of India 1998 (1) SCC 226; Union of India and Others V. Sushil Kumar Modi and Others 1998 (4) SCC 770; Vineet Narain V. Union of India 1996 (2) SCC 199

the fruits of the Courts decision are in fact enjoyed by the concerned children.